New twist in Toolara 'esky' murder, torture case
A FISHERMAN convicted of the torture and murder of Gold Coast man Shaun Barker has had both convictions quashed.
William Francis Dean was found guilty by a jury of the murder of Barker who the court heard was held captive in a commercial Esky, deprived of food and water and beaten over a drug debt in late 2013.
But Dean yesterday won a successful appeal of the murder conviction with the Court of Appeal ordering the conviction be quashed and substituted with a manslaughter conviction and that the torture conviction be quashed and a retrial ordered on that charge
In his appeal, Dean's lawyers argued the verdict in the murder case was "unreasonable and could not be supported having regard to the evidence".
They also argued that a miscarriage of justice occurred on the torture charge because the jury had not been properly instructed that before they could convict of torture they had to be unanimously satisfied about which act or which series of acts were intentionally inflicted to cause severe pain or suffering.
The charred remains of Mr Barker were discovered in April 2014 in the Toolara State Forest near Tin Can Bay.
Dean's co-accused Stephen John Armitage and Matthew Leslie Armitage, were found guilty of torture and interfering with a corpse.
The appeal judges found Dean had "participated in the imprisonment of Mr Barker … and the assaults upon him, for the ostensible reason of extracting information from him about the location of drugs or money".
They found Dean had participated in the torture of Mr Barker who was held in an Esky in the forestry land, including spreading honey on his testicles.
"The appellant's subsequent attempt to destroy the hammer himself raises an inference that the hammer was used in the mistreatment of Barker," the judges wrote.
"And (a witnesses') evidence was that (Dean) was present when some of the assaults on Barker were described, including smashing his kneecaps and bones in his hands, and cutting off a finger.
"(A witness gave) evidence was that the appellant returned with Matthew Armitage, put a container of honey down, and laughed about the fact that they had just put honey on someone's testicles and watched ants eat it off. The only inference available is that that was Barker."
The judges found the evidence indicated Dean was "directly involved in the kidnapping and imprisonment of Barker, and his subjection to violence and other mistreatment culminating in his death".
"However, the difficulty which confronts the ability to draw an inference of the requisite intent for the offence of murder, is that the prosecution had to prove that whatever killed Barker was an act done by the perpetrator with an intention to either cause death or cause grievous bodily harm.
"In other words, it had to prove beyond reasonable doubt that something done in the mistreatment of Barker caused his death, and that thing was done with the requisite intent.
"The difficulty which arises is because the cause of death cannot be proved. It is therefore simply not possible to say what killed Barker."
Dean will be sentenced on the manslaughter charge and retired for torture at a date to be set.